Q: Dear Ethics Lawyer, Because I’m an extremely hip lawyer… and will do it for free, StreamingCourtNews called me to video comment on a long-running celebrity case for its site. Perhaps getting carried away in the moment, I expressed the view that the judge seems to enjoy the limelight and could be providing unconstitutionally disparate treatment of the criminal defendant based upon how many TV cameras the defendant’s fame has attracted and the judge’s well-known ambition to be nominated for the appellate court. I realize this means I probably won’t find favor in this judge’s court in the future, but now I’m wondering, is this something I could actually be disciplined for?
A: Well, you bring a full bucket of issues with your question: (a) do the Model Rules cover judicial criticism? (b) what if the judge is in another state – does that state have jurisdiction over you and/or can your state discipline you for criticism of a judge from another state? (c) what about First Amendment protection of your comments? Setting aside the interesting choice of law questions for another time, Model Rule 8.2 provides that a lawyer shall not make a statement about the qualifications or integrity of a judge that the lawyer knows to be false or makes with reckless disregard for the truth, essentially the “actual malice” standard of Garrison v. Louisiana, 379 U.S. 254 (1964). In general, discipline of the attorney under this standard of knowing falsity or reckless disregard passes First Amendment muster if the disciplining authority proves the lawyer’s criticism was a false statement of fact, or if it was an opinion, that it necessarily implied an undisclosed assertion of fact that was false. See, e.g., In re Green, 11 P.3d 1078 (Colo. 2000). Here, at least with your use of “seems,” “could be” and “may” you have stated your views as opinions or possibilities rather than fact. Do these opinions or suggestions necessarily imply facts about the judge’s integrity? The Ethics Lawyer (who is not a “Constitutional lawyer”) thinks not, but that is the issue. And yes, you’ve definitely burned a bridge with (at least) that judge – best of luck with your media career.